Mbozi Cooperative Union Ltd vs Rajabu Simkoko (DC Civil Appeal No. 19 of 1997) [1998] TZHC 2430 (8 December 1998)

.,. .,. . I -U-~~- IN THE HIGH COURT OF TAZANIA AT J!BEYA DC CIVIL APPEAL.NO. 19 OF 1997 (From the decision of the District Court f,'.lJozi at Vwawa in Ci.vil Case No. 8/96) BEFORE: J. Lo LUPENZAH - S. D. M.) fJ30ZI CO-OPERATIVE UNION L'ID. • • e • 0 • • • 0 • 0 • 0 • e • APPELLANT VERSUS Rfi,J ABU SUlXQKO • • • 0 0 e e D • e • e e RESPOl\T})ENT JUDGEIVENT __ ; After the hearing_ of this ca(Se at the lower court of JVibozi District Court the drawn issues were all agreed between the parties .. , . and proved accordingly except for the fourth and sixth issue of the whtherL plaintiff was entitled to payment of Shs4' 5,946, 625/85 from the defendant as prayed in the plaint and the reliefs thereof. The lower court as presided over by the learned Mr. Lupenzah (s.D.lV,.) determined these two issues in favour of the Respondent that he had settled the entire loan of Shs.20,000,000/= inclusive the claimed amount of Shs.5,946,625/85 and that he; was :further entitled to be refunded Shs. 0 10,500/= 1 ;by the appellant being an • . ~ . amount which the respondent overpaid the appellant. The appellant was further ordered to pay the costs of the res:i)onden~; 6 'rhe appellant r 1 rocu U'.,bOzi Cooperative Union Ltc1.·.) as represented by the learned IV:r. I':bise (Adv.) is aggrieved by the decision of the District Court which is challenged by this appeal. The respondent.Rajabu s/o Sirrkoko as represented by the learned .. Mr. Naali (Adv.) has opposed this appeal.· The.first and second grounds of appeal:relate:to judgement debt of Shs.10,500/= which the appelJ.ant was held liable to pay ""· to the re-spondent that it was err_onously made since, the learned •.• /2

Mr. Ivb_ic:e 11rlvocr'"".-. te cn __ nt 0 na'e,1, th· ,.,re was rr-. '"'·-unter clai· r,- made ~ - "' C - C d•' •·..! ~ - 1'. L in respect of it and therefore no court fees ·were paid for it. The learned F:r. Naali (ildv,) has counter-arc;ued that such a ~ Tl"LO counter clain-; can be deduced frorr para 6 cf the Vlri tten State- ment of' Dei'i:::nce as supported oy the two annextures D to the w.s.D. shc:wing that the respondent had been issued with a receipt fer sold coffee weighing 20, 000- kc;s. to I\IBECU priced at Shs.20, 010~ 500/= and that by ·the letter frcnri.:;:f?()CU dated 25/7/97 with ref .. f ✓ 'BOCU/5499/tfBZ/UCC/6/19 ·the price of coffee would be Jhs.1,000/= per kg. 'ihE: eviclence produced in the District C,-:iurt and the pleadings show clearly that the respondent QlQ nat clairr by way of a ccunter-sui t called counteri..clairn ::i:'--::r the refund of Shs. 10,500/= alleged overpaid by him to the appellant. Since a counter-claim. in law is treated as a fresh suit in its own ri-ght it :.1ecessarily attracks the court :foes without the payE:ent of which nc• suit can be said to have been lmrfully insti tuted1 'I'he m2ntion in the 6th para of the viri tten Statement of Defence :-Ji the respondent for having been :·:ver-deducted up to Srrs.10,500/= was a nere answer to the plaint cf the appellant_ in defence of hir:cself so that the respondent could not be held liable fer the -Shs. over 5/= clairr filed against him. It was not a suit of his own against the appellant 2mounting to a counterclnim. The District Court therefcre, grossly erred to pass a jucl 6 ment: over an unfiled suit by \ira.y 0f a coun-t;;er-claim. Such holding being wrong is hereby quashed. I'he r")ther remaining three· gr:::)Unds of appeal challenged ( ...... , the h0lclil1g of the trial magistrate on the ?ued clebt''of Shs._,9?+6,625/85. The learned tv:r. Fbise (.1k1v.) contended. that the ,agr(:;ci:!ent was for a loan of cash Shs. 20m. /= accepted and: paid ' the refund of which was to be in cash up tr- the same tune of

• 3 - Shs, 20m•/= out of which only Shs.14,053,000/= had been pa\d through Ibcsha Cooperative Society where the respondent sold his coffee. The learned ¥.r. Naali (Adv.) c0unter argued that the resJonclent discharged his responsibility by having ':his coffee s•;ld with a weight of 20000½ kg. the• equivalent of Shs.20m./= which has been rerritted by IBBSHA Cooperative Society ts• the appellant. The: evidence on record shows that the c.-:mtract of loan was for Cash Shs.20m./= without tying it at all to the crop of coffee which the respondent had. The receipt No.54995 cf 10/8/95 issued to the respondent showing that he had sold coffee with a weight of 20010¼ kg. to JvIBECU valued at Shs. 20,010,500/= is not of any assistance to the respondent. If anything it is destructive to his defence 9ase because this receipt shows that it was issued on 10/.B/95 ond the cash was ·"' all of it paid to him up to the tune of the entire Shs. 20;010,500/= whereas, this loan was requested later on by the respondent on 13/9/95 and the actual po.yment was made on 4/12/95. 1hese were therefore two different contracts between the respondent and Ibesha Prin:ary Socity on, the one hand, \ and the "thcr one between the respondent and the appellant. Ibesha Primary Society acted as a mere guar2ntor for his re-payment since the coffee sales of the respondent were sold through the same primary society. The other documentary letter of the appellant showing that the initial selling price for coffee would be at Shs.l,000/= was a general advertisement at the start of the coffee buying season. If indeed Ibesha primary society bought/sold the coffee at Shs.1,000/= and still failed to remit the entire l0an arr:ount of Shs.20,010,500/= to the appellant that is an issue of a dispute between the two parties to that agreement between the respondent and Ibesha Prirrary Society for which the respondent c0uld presumably sue Ibesha Primary Society in court. Otherwise, there was no contract between the three. Ibesha Primary Society merely remitted the 0-hs.14m./= which mount was realized from the coffee sales the price of which dropped from-Shs.1 1 000/= to Shs.720/ only per kg. Ibesha ••• /4

.... Lj .... _,cciety C ' . 7 ' 1 f ff ~ . 00pero-c1 ve,1 csu . ._a pay on y rorr co ee s2les reB . .Lized by 6 " at the estimated the auctiGn Gt 720/= instead o] Shs .. 1 1 000/=. l ht:)ld that the respondent, nver paid. the rernair?,de3;, lean ..,repoyr,1nt to ting the difference in -enc cofe price drop. the appellant up to the tune of 3hs.5,9Lt6675/35 I He is liable to pay the same. The District Court erred The to have held tc- the contrary.,. decision of the District L Court is quashed accordingly. since The other issue is of interes"t_Lthe plaintiff sued for the comccrcial interest as shown in the 6 (b) para of the plaint and para (b) of the reliefs. The current rate of interest of the bank on 1/1/96 was not shown. in the .plaint or evidence 0:f the plaintiff by all his 3 witnesses who so testified on J.1.is behalf. They should have don2 _,instead of leaving it to speculation or proof of it outside the main trial such as at the time of execution. 2or .failure tc• prr·,v2 what the commercial interest ·was I actually currently obtaining hereby estirnE1te it to have been at a token of 10% p.a~,L It could have iJen at betvveen 30% - 4% bank rEtte in. I 1995/96 whicll is too bad for the appellant h2.vin,0 no~ · indicated it thcTt way in the plaint· and testir.ony in court! The 10% p.a 9 interest shall be chargd on the decretal sum of Shs,.59L6625/85 from 1/1/96 up to day (Jf judgement on 17 /6/97. ;.£'hereafter the 7% p.a. c0urt interest is the hereby held t, apply frcrrLday cf judgement until the full judgement debt is.finRlly paid. \ JUDGE 7/12/1998 ! ••• / 5

5 Date: s/12 1 98 ' I Coram: Hen. E.L.K. Mwipopo, J. For Appellant~ For Resp(::ndcnt~ n B/C~ Kosr1m r,Ir. fv,bise, Advocate - Present Absent in person } 1 .'.r. Naali, Advoc2te -- Present Absent in person £.9URT.: Judge;mont deli ver 8 d in the presence of both JUDGE 1998 ELK:M/JJM

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